Can a firm take a workers' compensation case against a law firm where one of the firm's current partners used to be an associate?

Plain-English summary

While X was a partner in law firm A, an associate of that firm died in an automobile accident. X later left firm A and became a partner in law firm B. Firm B was then approached by the decedent's next of kin about a possible workmen's compensation action against firm A, and firm B asked the Committee whether it could take the matter. Firm B stated that it did not believe it would be necessary to call X as a witness.

The Committee noted that it was given no facts about how the accident happened, so it could not evaluate the likelihood of X being called as a witness. That mattered because, in the usual workmen's compensation case, one of the few available defenses turns on whether the accident arose out of and in the course of the petitioner's (here, the decedent's) employment.

Assuming there is no dispute and no reasonable possibility of a dispute on that compensability issue, the Committee concluded it would appear that firm B's employment is not forbidden by DR 5-101(B). On those assumptions, and assuming firm A and its members were covered by an appropriate workmen's compensation insurance policy, the remaining issues in such a case would normally not involve any peculiar or confidential knowledge of X or members of his prior firm.

Currency note

This opinion was issued in 1979, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules. It applied DR 5-101(B), the lawyer-as-witness rule; in current New Jersey terms the analysis corresponds to RPC 3.7 (lawyer as witness) and the former-firm conflict principles of RPC 1.9. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm sue a former firm of one of its partners?

A: On the facts assumed in the opinion, yes. Assuming no dispute over compensability so the former associate would not be a witness, the opinion concluded employment of the new firm is not forbidden by DR 5-101(B).

Q: Why did the witness question matter?

A: Because if compensability were disputed, the former partner (X) might be called as a witness, which under DR 5-101(B) could bar the firm; the Committee could not assess that risk without facts about the accident.

Q: What about confidential knowledge from the former firm?

A: The opinion reasoned that, on the assumptions stated, the remaining issues would not normally involve any peculiar or confidential knowledge of X or members of his prior firm.

Background and rules framework

The opinion applied DR 5-101(B), which barred a lawyer from accepting employment in litigation where the lawyer or a member of the firm ought to be called as a witness. In current New Jersey terms the witness issue corresponds to RPC 3.7, and the concern about a former associate's knowledge of his prior firm corresponds to the former-client principles of RPC 1.9.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / NJ RPC 3.7 (lawyer as witness)
• MR 1.9 / NJ RPC 1.9 (duties to former clients), modern analog
• DR 5-101(B) (as in effect 1979)

See also

• NJ ACPE Op. 421: Attorney Likely to Be a Witness and Timing of Withdrawal
• NJ ACPE Op. 412: Defending a Municipality Against Its Former Mayor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp419-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.